American Partner Group, S.A. v. T-Rex Engineering and Construction, LC

Motion to Confirm Final Arbitration Award and for Entry of Judgment/Other Miscellaneous Relief

S.D. Tex.May 28, 2015

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION AMERICAN PARTNER GROUP, S.A., Plaintiff, v. T-REX ENGINEERING AND CONSTRUCTION, LC, Defendant. § § § § § § § § § § Case No. ___________ MOTION TO CONFIRM FINAL ARBITRATION AWARD AND FOR ENTRY OF JUDGMENT Applicant American Partner Group, S.A. (“American Partner”) files this Motion to Confirm Final Arbitration Award and for Entry of Judgment (“Motion to Confirm”), stating as follows: Parties 1. Applicant American Partner Group, S.A. is a Panama corporation. 2. Respondent T-Rex Engineering & Construction, LC (“T-Rex”) is a Texas limited liability company with its office in Houston, Texas. As T-Rex is a resident of the district within which the Final Award was made, service shall be made upon it through its registered agent Robert K. Hillin, Jr., 8100 Washington Avenue, Suite 200, Houston, Texas 77007 or its attorney William K. Andrews , Andrews Meyers, PC, 3900 Essex Lane, Suite 800, Houston, Texas 77027 as prescribed by law for service of notice of motion in an action in this Court. 9 U.S.C. § 9. Jurisdiction and Venue 3. This Court has jurisdiction pursuant to 9 U.S.C. § 203 and 9 U.S.C. § 302 and 28 U.S.C. § 1332. 4. Venue is appropriate as the place designated in the parties’ arbitration agreement as Case 4:15-cv-01440 Document 1 Filed in TXSD on 05/28/15 Page 1 of 5 2 the place for arbitration in Houston, Texas. 9 U.S.C. § 302. Further, the arbitration was conducted in Houston, Texas and T-Rex is a resident on Harris County, Texas. Background 5. On February 5, 2013, American Partner and T-Rex entered into a Consulting Agreement containing an arbitration clause designating Houston, Texas as the place for arbitration. See Consulting Agreement, a true and correct copy of which is attached hereto as Exhibit A1. 6. Also on February 5, 2013, and pursuant to the Consulting Agreement, T-Rex issued a Commission Letter confirming T-Rex’s engagement of American Partner to assist T-Rex in obtaining a contract relating to the construction of three platforms for the state-owned oil company of Ecuador. 7. By its Demand for Arbitration, dated July 29, 2014, American Partner initiated an arbitration against T-Rex for failure to pay commissions due under the Consulting Agreement and Commission Letter. 8. T-Rex appeared in the arbitration and on September 17, 2014 filed its Original Counterclaim and Answering Statement. 9. American Partner’s claim and defenses and T-Rex’s counter-claims and defenses proceeded in the matter styled: Case No. 01-14-0001-0759; In the matter of the Arbitration between American Partner Group, S.A. and T-Rex Engineering & Construction, LC; administered by the International Dispute Resolution Centre of the American Arbitration Association (the “Arbitration”). 10. On October 20, 2014, the ICDR confirmed the appointment of David C. Haigh, Q.C. as the sole arbitrator to hear the Arbitration. See ICDR Letter, a true and correct copy of which is attached hereto as Exhibit B. 1 Attached hereto as Exhibit D in the Affidavit of Odean L. Volker attesting to the authenticity of Exhibits A, B, and C attached to this Motion to Confirm. All Exhibits are incorporated herein by reference. Case 4:15-cv-01440 Document 1 Filed in TXSD on 05/28/15 Page 2 of 5 3 11. Beginning on March 10, 2015 the final hearing in the matter was held in Houston, Texas. 12. On May 20, 2015, the Mr. Haigh entered a Final Award in the Arbitration (the “Final Award”). A true and correct copy of the Final Award is attached hereto as Exhibit C. 13. The United States of America and the Republic of Panama are signatories to the Inter-American Convention on International Commercial Arbitration (the “Panama Convention”). See http://www.oas.org/juridico/english/sigs/b-35.html. 14. Both are also signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (the “New York Convention”). See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html. 15. The U.S. and Panama are also both members of the Organization of American States. See http://www.oas.org/en/member_states/default.asp 16. In cases where the requirements for the application of both the Panama Convention and the New York Convention are satisfied, and the parties to the arbitration are citizens of States that have ratified or acceded to the Panama Convention and members of the OAS, the Panama Convention applies. 9 U.S.C. § 305(1). 17. The Panama Convention incorporated into the Federal Arbitration Act (“FAA”), and is enforced pursuant to Chapter 3 of the FAA. 9 U.S.C. § 301. Accordingly, American Partner requests confirmation of the Final Award pursuant to Chapter 3 of the FAA.2 18. FAA section 302 incorporates the requirement contained in 9 U.S.C. § 207 that: “The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.” 9 U.S.C. § 302 (“Incorporation by 2 If for any reason, the Panama Convention is found not to apply American Partner seeks in the alternative that the Final Award by confirmed pursuant to the New York Convention and Chapter 2 of the FAA. Case 4:15-cv-01440 Document 1 Filed in TXSD on 05/28/15 Page 3 of 5 4 Reference”) incorporating 9 U.S.C. § 207. 19. No ground for refusal or deferral of recognition or enforcement of the Final Award specified in the Panama Convention or New York Convention exists. 20. Accordingly, the Court should confirm the Final Award and enter final judgment in accordance with the Final Award. WHEREFORE PREMISES CONSIDERED, American Partner Group, S.A. respectfully requests that this Motion to Confirm Final Arbitration Award and for Entry of Judgment be in all things granted, that the Final Award by confirmed by this Court, that judgment be entered in favor of American Partner as described in the Final Award, and for such other relief to which American Partner may be entitled. Respectfully submitted, HAYNES AND BOONE, LLP By:/s/Odean L. Volker______________________ Odean L. Volker State Bar No. 20607715 One Houston Center 1221 McKinney St., Suite 2100 Houston, Texas 77010-2007 Telephone: (713) 547-2000 Facsimile: (713) 236-5581 ATTORNEYS FOR AMERICAN PARTNER GROUP, S.A. Case 4:15-cv-01440 Document 1 Filed in TXSD on 05/28/15 Page 4 of 5 5 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing discovery has been served by electronic means on this the 28th day of May, 2015 to the following: William K. Andrews Via Email wandrews@andrewsmyers.com Kristi Belt Via Email kbelt@andrewsmyers.com Andrews Myers, P.C. 3900 Essex Lane, Suite 800 Houston, Texas 77027 Robert K. Hillin, Jr. 8100 Washington Avenue, Suite 200 Houston, Texas 77007 /s/ Odean L. Volker____________________ Odean L. Volker Case 4:15-cv-01440 Document 1 Filed in TXSD on 05/28/15 Page 5 of 5